Judgment · High Court

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 22.04.2010CORAMTHE HONOURABLE MR.JUSTICE C.T.SELVAMCrl.O.P.No.31721 of 2007andM.P.No.1 of 20071.M.Loganathan2.L.Latha..Petitioners/Accused 1 & 2VsV.R.Eswaramoorthy..Respondent/ComplainantCriminal Original Petition filed under section 482 of CriminalProcedure Code praying to call for the records and quash thecomplaint dated 09.08.2004 filed by the respondent and pending onthe file of the learned Principal Sessions Court cum Human RightsCourt, Erode in H.R.C.C.No.2 of 2004. For Petitioners: Mr.S.JayakumarFor Respondent: Mr.N.Manokaran *****

O R D E RThe petitioners, who are facing prosecution in case pending inH.R.C.C.No.2 of 2004 on the file of the learned Principal SessionsCourt cum Human Rights Court, Erode seek to quash proceedings asagainst them. 2. The respondent herein has preferred a complaint before suchCourt informing that the petitioners had borrowed a sum ofRs.1,25,000/- from the respondent/ complainant and issued a chequedated 02.04.2004. The cheque, when presented for collection, wasdishonoured for want of funds. The respondent/complainant has fileda complaint in C.C.No.401 of 2004 before the learned JudicialMagistrate II, Erode on 06.08.2004. When the respondent was waitingbefore the court hall on 06.08.2004, two police constables attachedto District Crime Branch, Erode, who are arrayed as accused No.5 and6 in the case before the lower Court, assaulted the respondent inthe presence of the public. Though, the petitioners had not beenpresent at the place of occurrence, the respondent/complainant had https://hcservices.ecourts.gov.in/hcservices/ alleged that the assault had taken place with the connivance of thepetitioners.

Hence, the police personnel as also these petitionersare said to have committed offences punishable under the Protectionof Human Rights Act, 1993 (hereinafter referred to as Act).3.The short point taken by the learned counsel for thepetitioners is that the admitted position is that these petitionersare not public servants. A Division Bench of this Court in SanthoshHospitals Private Limited v. State Human Rights Commission & others2005 (2) MWN (Cr.) 46 (DB) has held that the Act would apply only inrespect of violations of human rights committed by a public servant. As such, these petitioners, who are not public servants could not beprosecuted for the offence alleged against them under the Act. 4. The learned counsel for the respondent would state that thedecision of the Division Bench came about in a challenge by way ofwrit proceedings to an order passed by the State Human RightsCommission, Tamil Nadu.

The Act makes a distinction between HumanRights Commission and Human Rights Court. The power of both organsare not one and the same. The learned counsel would rely on Section16 of the Act, which reads as follows: "16. Persons likely to be prejudicially affected to beheard.- If, at any stage of the inquiry, the Commission.-(a)considers it necessary to inquire into the conduct of anyperson; or(b)is of the opinion that the reputation of any person islikely to be prejudicially affected by the inquiry, it shall give to that person a reasonable opportunity ofbeing heard in the inquiry and to produce evidence in hisdefence: Provided that nothing in this section shall apply wherethe credit of a witness is being impeached. "5. The contention is that it was open to the Human RightsCommission, when it considered it so necessary to inquire into theconduct of any person. There is no limitation to the effect thatonly the conduct of the public servants could be inquired into.

6. Further, as fairly pointed out by the learned counsel for therespondent, another Division Bench of this court in Tamil NaduPazhankudi Makkal Sangam v. Government of Tamil Nadu 1997 [Vol.XLI]MLJ (Crl.)655 has specifically found as follows: "63. In the light of definition of 'offences', ascontained in Sec.2(n) of the Code, the offences arising outof violation of 'Human Rights', as mentioned in Sec.30 ofP.H.R.A., will, in the context of the definition of 'HumanRights', under Sec.2(1)(d) thereof, means that such act oromission on the part of the instrumentalities of the State, that is to say, public servants, punishable by law for the https://hcservices.ecourts.gov.in/hcservices/ time being in force, as relatable to life, liberty, equalityand dignity of the individuals and nothing else. ""66...... (c) Point No.3(a): It is only such violationsof 'Human Rights' as embodied in International Covenants, treatise etc., either incorporated etc., either incorporatedin the Consitution, as justiciable right or incorporated ortransformed in municipal law, at the instance of theinstrumentalities of the State that get attracted thejurisdiction of the High Court under Art.226 or the SupremeCourt under Art.32 of the Constitution.

The violation ofsuch rights, if occurred at the instance of privateindividuals, there is no other go for the affectedindividual, except to seek his remedies under the ordinarylaw of the land. "7. On consideration of the rival submissions, this Court is ofthe opinion that the petition has to be allowed. The specificcontention before the Division Bench [Santhosh Hospitals PrivateLimited v. State Human Rights Commission & others 2005 (2) MWN (Cr.)46 (DB)] was that the Act dealt only with violation of human rightsby public servants and not by others. On consideration of suchcontention, the Division Bench has held in paragraph 24 as follows: "24. Thus, a perusal of the provisions of the Act and theforms annexed to the Regulations clearly indicate that the Human Rights Act deals with violation of Human Rights by apublic servant and not others. The petitioner is surely nota public servant, and hence the Human Rights Act will notapply to him at all.